Spinach E. coli lawsuit settled

dole spinach ecoli outbreakThe Associated Press broke the story yesterday that a Wisconsin family's E. coli lawsuit - one stemming from the 2006 spinach E. coli outbreak - had been resolved without going to trial.  Dinesh Ramde, AP business writer, wrote:

The agreement was reached in October but not filed in federal court until last week. It still needs approval from a federal judge, which Marler said he is confident will happen.

The national outbreak in September 2006 was traced to tainted spinach produced by Natural Selection Foods LLC. Three people died, including 77-year-old Marion Graff of Manitowoc.

Of the 204 people sickened by the tainted greens, Marler said about 100 have brought a lawsuit. His firm is handling 83 cases and has resolved 51 within the past few months.

On September 14, 2006, the Food and Drug Administration (FDA) announced that a nationwide E. coli outbreak had been associated with the consumption of bagged baby spinach. For fear of E. coli contamination, all bagged spinach was recalled nationwide, and on September 19, 2006, FDA announced that all spinach implicated in the outbreak had been traced back to Natural Selection Foods, a company located in California’s Salinas Valley.

FDA and the Centers for Disease Control and Prevention (CDC) confirmed 204 E. coli illnesses associated with the spinach E. coli outbreak, including thirty-one cases of hemolytic uremic syndrome, 104 hospitalizations, and three deaths. Victims of the E. coli outbreak were identified in 26 states: Arizona, California, Colorado, Connecticut, Idaho, Illinois, Indiana, Kentucky, Maine, Maryland, Michigan, Minnesota, Nebraska, Nevada, New Mexico, New York, Ohio, Oregon, Pennsylvania, Tennessee, Utah, Virginia, Washington, West Virginia, Wisconsin, and Wyoming. Wisconsin was the state hardest-hit in the outbreak, with 49 confirmed cases of E. coli. Canada reported one confirmed case.

A joint trace back by FDA and the State of California revealed that four spinach fields were the possible source of the E. coli contamination. The outbreak strain of E. coli was isolated from cattle fields nearby the implicated spinach fields, as well as from a wild boar that was killed in one of the fields.

No criminal charges over spinach E. coli outbreak

Federal prosecutors have decided against charging companies involved in the September 2006 E. coli outbreak traced to contaminated spinach.  According to an article in the Salinas Californian:

Following the outbreak, which led to the deaths of three people and sickened about 200 others, FBI agents raided two produce processing plants and several farms for evidence of environmental and food-safety violations. The investigation did not find that growers or processors had deliberately skirted the law or were negligent in preventing tainted foods from entering the marketplace, said U.S. Attorney Scott Schools.

Authorities had searched plants in October run by Growers Express LLC in Salinas and Natural Selection Foods LLC in San Juan Bautista, as well as farms in Santa Clara, Monterey and San Benito counties.

Schools stated that criminal charges were "not warranted" in this instance in an article for the Los Angeles Times.  Mary Engel, the article's author, pointed out that companies involved in the spinach E. coli outbreak still face civil litigation:

The outbreak last August and September caused 205 illnesses in 26 states and killed two elderly women and a toddler. The U.S. Centers for Disease Control and Prevention estimated that about 4,000 people were sickened by the spinach, taking into account that relatively few cases typically are reported.

Other deaths were considered "highly suspicious" but not definitively linked to the outbreak.

Marler Clark has brought claims on behalf of dozens of people injured in the E. coli outbreak.  Several cases have been resolved.

New York Times focuses on E. coli, food safety

Marian Burros, a journalist with the New York Times, interviewed Marler Clark client Elizabeth Armstrong, asking her about her recent testimony in front of the US House Energy & Commerce Subcommittee on Oversight and Investigations, for an article titled, "Who's Watching What We Eat?" that appeared in today's edition of the New York Times.  She started her column about food safety with a recount of the events that led up to Elizabeth and her husband Michael becoming food safety advocates:

ELIZABETH ARMSTRONG did not give the Food and Drug Administration much thought until her children became ill from eating contaminated bagged spinach.

Her 2-year-old daughter, Ashley, one of more than 200 people affected by the outbreak of E. coli 0157:H7 in spinach last year, is still dealing with the effects of kidney failure. Today she is off dialysis and home from the hospital. But she is on daily medication and will eventually need a kidney transplant, said her mother, who lives with her family in a suburb of Indianapolis.

The incident galvanized Ms. Armstrong, turning her into something of a food-safety activist. Testifying before Congress in April, she said that the Food and Drug Administration, the agency responsible for regulating much of the food we eat, including spinach, needed to be reformed.

She continued her article with a report on efforts to overhaul the US Food and Drug Administration, and included comments from important players in the food industry, including a quote from former FDA commissioner Dr. David Kessler, who stated, "Our food safety system is broken," and mentioned the recent Government Accountability Office designation of food safety as being "high risk":

This year the nonpartisan Government Accountability Office, the investigative arm of Congress, added the country’s food safety system to its list of “high risk” operations. The fact that 12 different agencies have some responsibility for food safety does not help, said a G.A.O. report, which recommended that all food safety matters be regulated by one agency.

The entire article, which includes many perspectives on food safety, is available on the New York Times Web site.

E. coli legislation moves forward in California

Yesterday, the California Senate Health Committee passed three bills introduced by Senator Dean Florez.  Before they reached the Senate Health Committee, the bills could be summarized as follows:Spinach Harvest

  • Senate Bill 200 gives the Department of Health Services the much-needed authority to recall, quarantine, or destroy produce which may pose a threat to the public. The measure also creates an inspection program to proactively address the threat of outbreaks. DHS inspectors would have the authority to conduct periodic on-farm inspections, including testing of water, soil and produce.
  • Senate Bill 201 mandates Good Agricultural Practices for leafy green growers, covering everything from water and fertilizer use, to worker hygiene, to the creation of buffer zones between fields and potential contamination sources. Growers would be required to maintain extensive documentation of these practices. These documents would be reviewed by DHS to ensure compliance.
  • Senate Bill 202 calls for the creation of a traceback system that can quickly trace contaminated produce through the various stages of the distribution process, from farm to processor, to distributor, to retailer. In the most recent E. coli outbreaks, lettuce and spinach producers nationwide took a major economic hit, because it could not immediately be determined where the contaminated produce came from and every farm was suspect. The ability to quickly find the specific source in an outbreak, combined with DHS’ ability to quarantine or destroy suspect produce, will prevent a similar industry-wide hit in future E. coli outbreaks.
According to an article in today's Salinas Californian, the bills passed out of the Senate Health Committee into the Senate Appropriations Committee, but were amended to instruct public health officials to set safety standards for growers of leafy green vegetables to follow.  The Californian's Jake Henshaw wrote:

Florez originally proposed that the state health department license growers, set field standards and enforce them with inspections.

But SB 201 was amended in the Senate Agriculture Committee, chaired by [Senator Abel] Maldonado, to make state health department regulation a backup to the industry if it failed to adopt its own mandatory safety standards.

SB 200 does require the departments of Public Health and of Food and Agriculture to administer jointly an inspection program of farmers' records and field operations to be sure they are meeting approved standards.

Spinach harvest underway: Health officials worry about E. coli

As California spinach producers began harvesting their crops this week, legislators, consumers, and health officials discussed the possibility of another E. coli outbreak while spinach farmers and processors tried to assure the public that they were doing all they could to prevent another outbreak.  In an article for the Salinas Californian, Jake Henshaw wrote:

The industry-designed, government-supervised plan requires all handlers who voluntarily sign up to accept spinach, lettuce and other leafy greens only from growers who follow new growing standards.

The fiscal year starts Sunday for the Leafy Green Handler Marketing Agreement, and participating handlers will begin paying 2 cents per carton to pay for inspections and other activities under the new plan.

Government inspectors, paid by the assessments to ensure that farmers follow the designated growing practices, will start making rounds Monday — primarily to test the checklist they’ll use in future inspections.

“It’s kind of a period where you shake down your testing,” said Alex Leach of Taylor Farms in Salinas, who chairs the board’s technical committee, on Friday.

Meanwhile, the Santa Cruz Sentinel highlighted a public health official's stance on fresh produce safety when it quoted Patti Roberts of the Department of Health Services in an article about the spinach harvest:

"Another outbreak could be right around the corner," and the risks associated with E. coli remain.

"We may have traced the outbreak to a certain area, and we may have identified the genetic marker," Roberts said, referring to four ranches in Monterey and San Benito counties and the deadly strain, O157:H7. "But there are still a lot of unknowns out there"

E. coli in produce: Is irradiation the answer?

On Sunday, Dateline NBC ran a story on fresh produce contamination.  The story focused on fresh spinach and lettuce grown in California, and whether irradiation is the answer to ensuring our fresh produce is safe.  Marler Clark client Michelle Matthews was interviewed for the story, as was Bill Marler:

"We can say all day long that we have the safest food system in the world," says Seattle attorney Bill Marler, who specializes in cases involving victims of E. coli-contaminated produce. "Well, we don't. And we have systems that are broken. We have things that need to be fixed."

Marler represents Michelle Matthews, who is suing Dole Foods and Natural Selections/Earthbound Foods to cover her past and future medical bills and her pain and suffering. He says the industry has known about and ignored the problem for years.

"It's easy in these situations to go, 'I'm not sure exactly what caused the problem, so there's nothing I can do. But I'm making a lot of money selling spinach and lettuce in a bag, so I'm going to keep doing that.' They didn't take the time to figure out what the problem was," says Marler.

Another Marler Clark client, Steven Minnis, was interviewed for Dateline's Web site.  His interview can be seen here:  http://www.msnbc.msn.com/id/17740663/

E. coli in spinach: final report issued

The California Department of Health Services and the Food and Drug Administration released their final report on the spinach E. coli outbreak today.  The report is titled, "Investigation of an Escherichia coli O157:H7 Outbreak Associated with Dole Pre-Packaged Spinach (redacted)," and is accompanied by "Recommendations in follow up to the Investigation of an Escherichia coli O157:H7 Outbreak Associated with Dole PrePackaged Spinach."

Gerance Burke, writing for the Associated Press, reported on the report's release in a story published at the San Francisco Chronicle's Web site:

Authorities for the first time said they had isolated the deadly E. coli strain on Paicines Ranch in San Benito County from a field the ranch leased to Mission Organics, a spinach grower.

They found E. coli "indistinguishable from the outbreak strain" in river water, cattle feces, and wild pig feces on the ranch within a mile a from the spinach fields, the California Department of Health Services and U.S. Food and Drug Administration said in a joint report.

Investigators also said they could not make a "definitive determination" as to how the E. coli contaminated the spinach.

The Paicines Ranch, which breeds Angus cattle and quarter horses, said in a statement on its Web site that it leases land to crop growers and was not under investigation in the outbreak. A phone number could not immediately be located to reach the ranch for further comment.

In its own news release about the E. coli report, FDA said:

The report describes the painstaking detective work of the investigators following the first reports from CDC in September 2006 of an apparent outbreak of E.coli O157:H7 linked to the consumption of bagged spinach. The probe initially focused on the processing and packaging plant of Natural Selection Foods, LLC in San Juan Bautista, CA, where the contaminated products had been processed.

The next focus of the inquiry was the source of the spinach in 13 bags containing E.coli O157:H7 isolates that had been collected nationwide from sick customers. Using the product codes on the bags, and employing DNA fingerprinting on the bacteria from the bags, the investigators were able to match environmental samples of E.coli O157:H7 from one field to the strain that had caused the outbreak.

E. coli outbreak: spinach farmers to benefit from Iraq War bill

Two Marler Clark clients were interviewed for articles regarding today's vote on an Iraq War bill.  The articles were both about the addition of $25 million of funding for spinach farmers who lost revenue during last year's spinach recall. 

In an interview for ABC4 in Salt Lake, Marler Clark client Michelle Matthews spoke of her views on the spending bill:

"I understand this is the way our legislature works, but I think it's just sickening," Michelle Matthews of Eagle Mountain told ABC 4 News. She's upset because one of the earmarks reimburses California spinach farmers $25 million for losses they suffered. The losses came when they were unable to sell their crops last fall after Americans got sick and died from e-coli bacteria in a batch of tainted spinach.

Some of that spinach found its way to the Matthew's dinner table. Michelle got sick, but her daughter, Arabella, almost died. Arabella was just two-years-old when she came down with e-coli. She spent nine days at Primary Children's Hospital, had an operation and was on kidney dialysis.

The Matthews have about $60,000 in medical bills now, mostly covered by insurance. She says the family has been assured the spinach grower's insurance company would pay the bills, but no money has arrived. Then Mrs. Matthews read that the spinach farmers stand to gain $25 million from the Iraq war spending bill.

In an article for USA Today, Marler Clark client Darryl Howard whose mother, Betty, died after becoming ill with an E. coli infection, said, "They killed my mother, and now they want me to pay for it."

More Marler Clark clients have commented about the issue on Bill Marler's blog.

Officials trace tainted spinach to San Benito County farm

SACRAMENTO - Fresh spinach that sparked a nationwide E. coli outbreak last fall was grown on a roughly 50-acre plot in San Benito County, health officials told state lawmakers.

Officials said at a legislative hearing Tuesday that investigators identified the grower who was farming that plot, which was in the second year of a three-year transition to organic production.

However, they declined to release further details until they complete a full report on the outbreak. Dr. Kevin Reilly of the California Department of Health Services did not give an exact date for releasing the report with the U.S. Food and Drug Administration, but said "hopefully within the next few weeks."

Keep reading here

More measures needed to ensure food safety

CBS News correspondent Wyatt Andrews interviewed Marler Clark client Lisa Brott, who became ill with an E. coli infection after eating E. coli-contaminated spinach in September, former USDA and FDA food safety official Michael Taylor, and Senator Dick Durbin for a story that aired tonight on the CBS Evening News.  Notable comments included the following:

"There's no one in charge in the federal food safety system."  - Michael Taylor

"The basic allocation has nothing to do with who's getting sick, and it's out of proportion to where the actual risks in the food supply." - Michael Taylor

"When you consider 75 million Americans with food-borne illnesses each year, I do believe a better, more modern, streamlined agency would reduce those numbers. And it means that more people would survive." - Senator Dick Durbin

"It's outrageous so many people are poisoned by food.  A lot more has to be done, whatever it takes, to protect people's health." - Lisa Brott

Preventing E. coli: Industry group asks for federal regulation

In the wake of E. coli outbreaks traced to spinach and lettuce last year, and in many years prior to 2006, the United Fresh Produce Association is asking for federal regulations to set standards for produce safety and the Government Accountability Office listed food safety as a high-risk area.  In an article from the Philadelphia Inquirer, which focused on what small, local, farmers are doing to ensure produce safety, concerns about regional marketing agreements and state or local regulations were highlighted:

However, such state-by-state and commodity-by-commodity standards are not satisfactory, said Tom Stenzel, president of the United Fresh Produce Association in Washington. Stenzel's trade group is calling for national regulations enforced by government agencies.

"The consumer is not going to have full trust in a self-regulatory system. That's a hard pill for us as an industry to swallow," said Stenzel, who is scheduled to speak tomorrow at the New Jersey State Agricultural Convention in Atlantic City. It starts today and runs through Wednesday.

Existing federal regulations on food safety need to be improved, according to the federal Government Accountability Office, which added the federal food-safety system to its list of high-risk areas of government activity less than two weeks ago. The main issue is fragmentation, with 15 agencies administering at least 30 laws related to food safety.

Discussions among produce-industry groups and regulators are coming at a time when E. coli and other human pathogens are less prevalent - the colder months.  It is in anticipation of the summer and fall growing season that concerns are being addressed now.  From the Arizona Republic:

Lettuce and spinach production begins in the Salinas Valley in the spring. Production moves south as the weather cools, with farms in Yuma County and California's Imperial Valley producing the crops during the winter.

"In the history of Yuma agriculture, we have never had any sort of an outbreak with our leafy-greens," said Kurt Nolte, area agriculture agent for the Yuma County Cooperative Extension, part of the University of Arizona. "The nature of food outbreaks occurs during the warm periods of the year."

Second Taco E. coli Outbreak Traced to Central Valley

Investigators for the FDA and CDC have indicated that the E. coli-contaminated lettuce that sickened customers at Northeast Taco Bell restaurants in November and December of 2006 came from California's Central Valley.  The Taco Bell outbreak was reported just before an outbreak at Taco John's locations in the Midwest, which was also traced to lettuce grown in the Central Valley. 

In an article for the Salinas Californian, Brian Tumulty reported that FDA was continuing its investigation and that a final investigation report into the Taco Bell E. coli outbreak would not be published for at least another month, while a report on last fall's E. coli outbreak traced to baby spinach will be issued before then.

Utah child sues California spinach producer and manufacturer over E. coli illness

Marler Clark Press Release
For further information contact
Bill Marler
(866) 770-2032

Wisconsin, Oregon plaintiffs amend complaints to add additional defendants.

SEATTLE, WA (SEPTEMBER 18, 2006) – On Monday, Seattle-based Marler Clark will file another lawsuit on behalf of a victim of the recent E. coli O157:H7 outbreak traced to contaminated spinach. The lawsuit will be filed against Natural Selection Foods, LLC and National Selection Foods Manufacturing, LLC in federal court in Utah on behalf of Murray, Utah resident Sheila Leafty and her young son, Brayden. Brayden is one of at least 14 Utah residents who have become ill with E. coli O157:H7 infections after eating contaminated spinach produced by Natural Selection Foods. 

Marler Clark also added both Natural Selection companies to two lawsuits that the firm filed last week in federal court in Oregon and Wisconsin against Dole Food Company. Health officials in those states have reported that at least 19 residents (5 in Oregon and 14 in Wisconsin) were confirmed to be part of the outbreak. On Sunday, the Food and Drug Administration reported that 109 individuals in 19 states, sixteen of whom have developed hemolytic uremic syndrome (see www.about-hus.com), have been confirmed as being part of the outbreak. One Wisconsin resident died after suffering complications of E. coli infection.

“As the grower and producer, Natural Selections Foods should have been consumers’ first line of defense against E. coli entering the food supply,” said Bill Marler, attorney for the plaintiffs in the three lawsuits. “Instead, this company allowed contaminated produce to enter the marketplace and caused one of the largest fresh produce-related outbreaks in recent history.”

“This is not the first time bagged spinach has been traced to an E. coli outbreak,” Marler continued. Bagged lettuce and spinach were traced to E. coli O157:H7 outbreaks in 2002[1], 2003[2], and 2005.[3] “Consumers put their trust in the 31 brands that Natural Selections Foods supplied spinach for. They shouldn’t have to pay for their trust with their health.”

Marler, who is in Milwaukee, Wisconsin this week meeting with the families of several severely injured children with HUS, began representing victims of E. coli O157:H7 outbreaks in 1993, when he represented the most severely injured survivors of the Jack in the Box E. coli outbreak.  He has been retained by 13 people who were confirmed part of the current outbreak, and is investigating 18 additional cases in seven states.  He has represented thousands of other victims of E. coli outbreaks (see www.marlerclark.com/news/notable-news-index.htm). 

Marler is available by cell phone at (206) 794-5043 or bmarler@marlerclark.com. You can also keep up to speed with Mr. Marler at his blog site, www.marlerblog.com.

Fresh and risky

14.sep.06
Commentary from the Food Safety Network
Douglas Powell and Ben Chapman
www.foodsafety.ksu.edu

Now it's killer spinach.

The U.S. Food and Drug Administration (FDA) announced this evening that, based on preliminary epidemiological evidence, bagged fresh spinach may be the common food in an outbreak of E. coli O157:H7 that has left one person dead and at least 50 others sick in eight states. 

Of those, 8 individuals have developed a form of kidney failure called hemolytic uremic syndrome. FDA is telling consumers to not eat bagged fresh spinach at this time.

This is going to be a major outbreak, and not just because of the pain and suffering, the business losses, the increased consumer skepticism.

For the industry, the timing is terrible, following a nationwide warning to consumers in early October 2005 against eating certain pre- packaged Dole salad products because the lettuce had been associated with an outbreak of E. coli O157:H7 in Minnesota in which at least 18 people fell ill, further ratcheting up attention on the $2 billion lettuce (and spinach) industry.

And maybe that's a good thing.

On Nov. 4, 2005, Dr. Robert Brackett, director of FDA's Center for Food Safety and Applied Nutrition, wrote California lettuce producers, packers and shippers, urging them to re-examine and modify operations from the farm through to distributors to ensure that consumers were provided with a safe product.

Dr. Brackett's November letter noted that FDA was aware of 18 outbreaks of foodborne illness since 1995 caused by E. coli O157:H7 for which fresh or fresh-cut lettuce was implicated as the outbreak vehicle. In one additional case, fresh-cut spinach was implicated. 

These 19 outbreaks accounted for 409 reported cases of illness and two deaths.

A subsequent Dateline NBC report on the Dole outbreak spawned a summer of Internet-amplified warnings about the perils of bagged lettuce, many of them false, which will now, with the latest outbreak, be recycled as truth.

And last week, FDA officials were in California's Salinas Valley -- the "Salad Bowl of the World," -- promising increased scrutiny on the industry.

Fresh fruits and vegetables are good for us; we should eat more. Yet fresh fruits and vegetables are one of, if not the most, significant source of foodborne illness today in North America. With an estimated

76 million illness and 5,000 deaths in the U.S. each and every year from foodborne illness, that's just too much.

The problem with fresh produce is that the very characteristic that affords dietary benefit -- fresh -- also affords microbiological risk.

Because they are not cooked, anything that comes into contact with fresh fruits and vegetables is a possible source of contamination. Is the water used for irrigation or rinsing clean or is it loaded with pathogens? Do the workers who collect the produce follow strict hygienic practices such as thorough handwashing? What happens to that head of lettuce once it gets on to the sorting line, and then gets chopped up? The possibilities are almost endless.

Even more challenging is that many of these problems must be controlled on the farm. There are situations where the most ardent washing of produce by consumers will accomplish … nothing; in some cases, the dangerous bugs can actually reside within the fresh produce.

Instead of the banal -- and in this case, entirely ineffective -- advice to thoroughly wash all produce, consumers, restaurants, grocery stores, everyone, should be asking some difficult but basic questions: what do growers of fresh lettuce or spinach do to control dangerous microorganisms like E. coli O157:H7?

The U.S. lettuce/leafy greens industry took the first step in doing this, releasing a comprehensive set of food safety guidelines, from the farm through to retail, in April, 2006. That's nine years after the FDA first drew attention to the problem of fresh produce. And even though grower groups will tomorrow say, "We have these guidelines …" that is not nearly good enough.

For the past decade, numerous on-farm programs have been created and touted, yet outbreaks associated with produce continue unabated.

Programs mean manuals, checklists and bureaucratic oversight. What's needed is the data to illustrate where, why and how dangerous bugs get into fresh produce, and, equally important, people to provide on- going interaction with farmers, retailers and food service, to compel each individual in the farm-to-fork food safety system to do whatever is possible to further enhance the safety of fresh produce.

We have worked with growers of fresh produce for the past 10 years, and know that any grower can clean up for a once-a-year audit. Given the on-going outbreaks, growers that want to stay in business, will get some food safety religion for the other 364 days of the year.

Seattle food safety attorney William Marler, who this evening filed a lawsuit in the spinach outbreak, recently noted, "Consumers cannot be left as the last line of defense. Adulterated lettuce (or spinach) should not be making it into the hands of consumers – or retailers, for that matter – in the first place."

Dr. Douglas Powell is scientific director of the Food Safety Network at Kansas State University and Ben Chapman is a PhD student at the University of Guelph. They are the authors of, most recently, an academic book chapter entitled, Implementing On-Farm Food Safety Programs in Fruit and Vegetable Cultivation, in the recently published, Improving the Safety of Fresh Fruit and Vegetables http://www.woodheadpublishing.com/en/book.aspx?bookID=831

dpowell@ksu.edu